M. BURHANUDDIN KHAN, J.-Special leave is sought by this petition to appeal against the judgment and order of the Lahore High Court, Rawalpindi Bench, dated 26-9-1981 whereby Criminal Appeal No. 1099 of 1981 against the judgment dated 30-9-1980 of the Additional Sessions Judge, Attock, was dismissed and conviction and sentence of the petitioner was upheld..
2. The facts are that Peshawar Khan, deceased, lived with his brother Lahore Khan, and Aurangzeb Khan P. W. At the brick-kiln of Hasan Din contractor. The accused petitioner also resided in the same area in an adjacent quarter. Arman Gul, accused, his wife Mst. Niaz Bano and his father Zari Gul (acquitted accused) also lived in the adjacent quarter of the deceased. Sometime back Arman Gul, accused, suspected that Peshawar Khan, deceased, bad a liaison with his wife Mst. Niaz Bano.
About 1-1/2 months before the occurrence Arman Gul protested to the deceased's brother Lahore Khan regarding the affair between his wife and Peshawar Khan deceased. Accused complainant party assured that there was no such illicit connection between Peshawar Khan and Mst. Niaz Bano and were ready to take on oath but the accused appellant did not feel satisfied. On 4-6-1978 Peshawar Khan Mst. Khial Mirjan, his sister-in-law and Aurangzeb, P. W. Were sleeping in the courtyard of their house where a lantern was lit. Aurangzeb, P. W. Got up to make water at about mid-night. He saw Arman Gul, accused with a hatchet and Zairi Gul (acquitted accused) empty handed, standing near the cot of Peshawar Khan, deceased, and therefore, challenged them. It is alleged that Zairi Gul replied that they had come to avenge the insult heaped on them by the conduct of Peshawar Khan. Thereafter Zairi Gul is said to have directed Arman Gul, his son, to shoot Peshawar Khan who was sleeping on his cot. Arman Gul, accused, fired and hit Peshawar Khan, deceased on his right arm and abdomen. Commotion thus caused awakened Mst. Khial Mirjan, P.
W. Who also witnessed the occurrence. Noor Ahmad (P. W.) Chowkidar of the brick kiln, on hearing the noise, reached the spot. Peshawar Khan died instantaneously and Aurangzeb, P. W. Proceeded to the police station to notify the Police. On his arrival at the P. S. He lodged the F. I. R. Which was recorded by Manzoor Ahmad, S. 1. At about 1-30 a.m. At the same night. After recording the report Manzoor Ahmad proceeded to the scene of crime where he found the dead body of Peshawar Khan, prepared injury sheet and inquest report, took some blood-stained earth and also lantern Exh. P. 3, and sent the dead body to the mortuary for autopsy.
3. Dr. Muhammad Afzal Wali, the then Medical Officer, Civil Hospital, Pindigheb performed the post- mortem examination of the dead body of Peshawar Khan and he found:
(i) Fire-arm inlet wound inverted edges 1--" x 3/4" going inward with blackening around the wound, bone underneath was fractured, situated on right fore-arm 2 1/2 below right elbow joint.
(ii) Fire-arm wound, edges inverted 3" x 2--on a medial side of right fore-arm 3" below right fore- arm. This injury was associated with injury (i) above.
(iii) Fire-arm inlet wound, edges inverted 1-- " x 3/4' going inward on front portion of right side of abdomen intestines were coming out 2" left of umbilicus.
Death in his opinion was due to shock and haemorrhage caused by the above mentioned injuries which were sufficient to cause death in the ordinary course of nature. He removed five pellets from the body with two cartridge pieces.
4. The accused could not be found and the police, after due search, initiated proceedings under sections 87/88, Cr. P. C. On 30-7-1978 and a challan under section 512, Cr. P. C. Was submitted in the Court. On 24-9-197& Ch. Muhammad Aslam S. I. (P. W. 11) was on patrol duty near Akhlas Chowk on Makhad Road when he came across the accused appellant Arman Gul at 2-00 a.m. And arrested him under section 109, Cr. P. C. During the interrogation it transpired that Arman Gul was one of the accused in a murder case. He was in possession of a '12 bore gun which was taken by the said S. 1 Ch. M. Aslam for which a separate case under the Arms Ordinance was registered against the accused.
5. The trial Judge examined the prosecutor witnesses and the accused under section 342, Cr. P. C.
The accused appellant denied illicit connection of his wife Mst. Niaz Bano with the deceased. He also denied his abscon--dance and stated that he worked at the brick kiln of another man named Lal Mast and was not employed by Hasan Din, contractor, nor he lived in a quarter adjacent to the deceased. He further stated that as there was rivalry between the two contractors who were running two different kilns, the relations of the labour employed by them, also become strained and on account of this he and his father (acquitted accused) had been falsely implicated in this case. He also denied the recovery of the gun and stated that his father had produced his licensed gun before the police on 21-9-1978, vide receipt Exh. D. C.
6. The learned trial Judge rejected the defence produced by the accused. Recovery of the gun was also disbelieved by him. Relying on the evidence of the eye-witnesses he found the prosecution case proved to the hilt against the accused Arman Gul, while giving benefit of doubt he acquitted Zairi Gul.
7. The learned Judge of the High Court also agreed with the trial Judge and accepted the statements of Nur Ahmad P. W. 9 Chowkidar of the kiln, Aurangzab P. W. 10 brother of Peshawar Khan deceased and Mst. Khial Mirjan, wife of deceased's brother Lahore Khan. The High Court also rejected the contention of the learned counsel for the appellant that the crime was committed in the dark hour of night when none of the witnesses had the opportunity to identify the culprit. The learned Judge also accepted the medical evidence to be in accord with the ocular testimony.
8. The learned counsel for the petitioner assailed the judgments of the two Courts on the ground that the ocular testimony is highly interested and is in conflict with the medical evidence; it was a night occurrence and the identification of the assailant had not been established beyond reasonable doubt: and that after ruling out from consideration the recovery of gun from the petitioner there was no corroboration of the interested ocular testimony.
9. In order to appreciate the contentions raised by the learned counsel we have gone through the impugned judgment and found that these con--tentions have been repelled by the Courts on proper reasoning. Ahmad Khan P. W. 7 was working as a Clerk in the brick kiln of Hasan Din, contractor. He knew the parties and according to him they all were living at the brick kiln in separate quarters built for them. Arman Gul, accused-- appellant, was living with his family and that about 10/12 days prior to the occurrence Arman Gul, petitioners Aurangzeb P. W. And Lahore Khan had exchanged hot words. As he did not know Pushto he (Nur Ahmad) asked them as to what was the matter in dispute but they told him "it was nothing" but after some time there was again a row between the parties and this time Lahore Khan told him that Arman Gul had charged Peshawar Khan deceased for having an illicit connection with his wife Mst. Niazi Bano and that they had offered to satisfy Arman Gul on oath that the accusation was wrong. The matter was put off till the arrival of Zairi Gul father of Arman Gul. Zairi Gul returned from his village and converted a Jirga in the quarter of Lahore Khan where Zairi Gul agreed to the reconciliation but Arman Gul was adamant and had, in turn, brought the matter to the notice of Hasan Din, contractor. He also denied any rivalry between the two contractors namely Hasan Din and Lal Mast. Lahore Khan P. W.
8 is also a witness of the motive and on the fateful night he was not present in the house. He had gone to Attock two days earlier. Noor Ahmad, P. W. 9, when examined at the trial, stated that he was patrolling at the brick kiln at about 12-30 a.m. And when he reached the quarter of Peshawar Khan he heard the report of fire shot and proceeded in that direction where he saw Arman Gul, accused appellant and Zairi Gul standing near the cot of Peshawar Khan. Arman Gul had a gun '12 bore while Zairi Gul was empty handed. He raised an alarm and the two accused ran away. He further stated that Arman Gul's wife was also present in the same compound where the occurrence took place and the wife of brother of Peshawar Khan deceased was lying on a nearby cot and that she was Mst. Khial Mirjan, P. W. And Aurangzeb P. W. Was also present, and that Aurangzeb proceeded to the police station for lodging the report. Aurangzeb, P. W. Also furnished ocular account of the occurrence and his statement is to the effect that he got up at mid-night for making water and when he was about to leave his cot, he saw Arman Gul standing near the cot of Peshawar Khan with a gun in his hand and Zairi Gul empty handed and that in his presence, Zairi Gul asked his son Arman Gul to fire and Arman Gul fired at Peshawar Khan who was hit. Mst. Khial Mirjan also witnessed the occurrence. Soon after Nut Ahmad, Chowkidar also came and the two accused fled away. He further stated that there was electric pole on the northern side of the cots where the deceased and the other witnesses were lying and a lantern was also lit at that time. Therefore, he proceeded to the police station and lodged the report.
10. Mst. Khial Mirjan, P. W. 12 also gave ocular account of the occurrence. She is wife of Lahore Khan, P. W. 8.
Testimony of these witnesses established the case of murder against the accused petitioner and nothing has been brought out to cast any doubt on their testimony. The accused also absconded after the occurrence and Ch. M. Aslam, P. W. 11 had searched for the accused, and as he was no traceable, proceedings were initiated against him under sections 87/88, Cr. P. C. And a challan under section 512, Cr. P. C. Was also submitted in the Court. He further stated that on 24-9-1978 he arrested Arman Gul, petitioner, on Mukhad Road at 2-00 a.m. With a ' 12 bore gun which he took into posses--sion. The ocular evidence is sufficient to bring home the guilt to the accused, which further finds support from the fact of his absence from his place of residence, and his employment with Hasan Din, contractor is also established.
11. On going through the medical evidence we find that the injure accused to the deceased was possible by a single shot fired from a close range. The pellets had entered the right fore-arm of the deceased below the right fore-arm point and making an (i) exist wound on medial side of right fore-arm 3 below the right fore-arm and injury (ii) was found by the Medical officer as communicating with injury (i) and the same then re-entered from portion of the right side of the abodomen. The doctor had also stated that these injuries were the result of a single shot.
For the foregoing reasons we find no merit in this petition which is accordingly dismissed.